IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION FILED May 28, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
JAMES ROBERT BLEVINS, ) C.C.A. No. 03C01-9611-CR-00396 ) WASHINGTON COUNTY Appellant, ) ) Hon. Arden L. Hill, Judge VS. ) ) (Post-Conviction) STATE OF TENNESSEE ) No. 21467 BELOW
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 Eighth Avenue South Attorney General and Reporter Nashville, TN 37204 SANDY R. COPOUS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
DAVID E. CROCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601
MICHAEL LaGUARDIA Assistant District Attorney General Post Office Box 38 Jonesborough, TN 37659
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK, Special Judge
OPINION
1 Appellant appeals as of right from the trial court’s dismissal of his petition for
post-conviction relief based on the running of the statute of limitations. Appellant
contends that the ruling in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994),
clarifying the rule of when other uncharged instances of sexual conduct can be
admitted into evidence, creates a new, retroactive constitutional rule that voids his
conviction and sentence. He also asserts a denial of equal protection. We disagree
and affirm the judgment of the trial court.
In 1988 appellant was convicted by a jury of four counts of rape. He received
four sentences of seven years, to be served consecutively. On direct appeal
appellant specifically raised the issue of admission into evidence of sexual
encounters between the victim and the appellant outside the time frame alleged in
the indictments. The conviction and the sentence were affirmed by this court. State
v. James R. Blevins, No. 250 (Tenn. Crim. App., Knoxville, August 31, 1989). The
petition for rehearing was denied October 18, 1989. The Supreme Court denied
application for permission to appeal, concurring in results only, on January 2, 1990.
The Court denied the application to rehear on February 5, 1990.
In his first petition for post-conviction relief appellant alleged ineffective
assistance of counsel. After an evidentiary hearing the trial court dismissed the
petition, finding that defendant had effective trial representation. This court upheld
the dismissal. James R. Blevins v. State, No. 03C01-9106-CR-00171 (Tenn. Crim.
App., Knoxville, October 27, 1994). The application for permission to appeal was
denied February 6, 1995.
On March 3, 1993, petitioner filed a petition for habeas corpus. The trial
court found that it failed to allege grounds that would warrant the issuance of such
a writ and, if treated as a petition for post-conviction relief, was barred by the statute
of limitations. That dismissal was upheld by this court in James R. Blevins v. State,
No. 03-C-01-9308-CR-00271 (Tenn. Crim. App., Knoxville, January 5, 1994).
2 The petition for post-conviction relief now before the court was filed
January 5, 1995. It again raises the issue of admission of evidence of other sex
crimes not charged in the presentments. Under the law in effect at the time this
petition was filed, Tenn. Code Ann. §40-30-102(f)(1) required that an individual
apply for post-conviction relief within three years of the date of the final action of the
highest state appellate court to which an appeal was taken.1 Appellant’s petition in
this matter was filed well beyond that three-year limitations period.
However, appellant contends that the facts in his case place him within the
exception created in Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) and/or
Tenn. Code Ann. §40-30-105,2 granting relief when a case involves a constitutional
right not existing at the time of trial if the constitution requires retrospective
application. The appellant relies on State v. Rickman, 876 S.W.2d 824 (1994),3
asserting that Rickman creates a new constitutional rule of law which was not in
existence at the time of any earlier petitions. After consideration, we find the
defendant’s claims do not properly fall within either of these exceptions to the
statute of limitations.
First, the decision on which appellant in this case relies does not announce
a new constitutional rule, but only a new interpretation of Tenn. R. Evid. 404. State
v. Rickman, 876 S.W.2d at 829. It does not even exclude all evidence of other sex
crimes when an indictment is not time specific. It focuses only on evidentiary
1 The 1995 Post-Conviction Procedure Act, T.C.A. §40-30-201 et. seq. (Supp. 1996) applies to all post-conviction petitions filed after May 10, 1995. See 1995 Tenn. Pub. Act 207, Section 3. T.C.A. §40-30-202(a) provides that petitions for post-conviction relief must be filed within one year of the date of the final action of the highest state appellate court to which an appeal is taken, or if no appeal is taken, within one year of the date on which the judgment became final. 2 Now T.C.A. §40-30-202(b)(1). 3 In Rickman the Supreme Court overruled prior precedent, holding that there is no “sex crimes” exception to the general rule that other crimes evidence is not admissible in criminal prosecutions, but there is a narrow special rule which admits prior sex crimes into evidence if the indictment is not time specific and the other crimes allegedly occurred during the time frame charged in the indictments.
3 relevance of such other acts. Accordingly, this issue is without merit. See Burr v.
State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).
Second, even if a new constitutional rule had been announced in Rickman,
retroactive application would not be required. Generally, a new constitutional rule
of law is one that “breaks new ground or imposes a new obligation on the states or
the federal government . . . [or] if the result was not dictated by a precedent existing
at the time the defendant’s conviction became final”. Teague v. Lane, 489 U.S.
288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349 (1989); Meadows v. State,
849 S.W.2d 748, 751 (Tenn. 1993). A new rule of federal constitutional law is now
retroactively applied to all cases, state or federal, pending on direct review or not
yet final, regardless of whether the new rule constitutes a “clear break” with the
past. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
However, a new federal constitutional rule will not be given retroactive application
to cases on collateral review unless (1) the rule places certain kinds of primary,
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION FILED May 28, 1997
Cecil Crowson, Jr. Appellate C ourt Clerk
JAMES ROBERT BLEVINS, ) C.C.A. No. 03C01-9611-CR-00396 ) WASHINGTON COUNTY Appellant, ) ) Hon. Arden L. Hill, Judge VS. ) ) (Post-Conviction) STATE OF TENNESSEE ) No. 21467 BELOW
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 Eighth Avenue South Attorney General and Reporter Nashville, TN 37204 SANDY R. COPOUS Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493
DAVID E. CROCKETT District Attorney General Rt. 19, Box 99 Johnson City, TN 37601
MICHAEL LaGUARDIA Assistant District Attorney General Post Office Box 38 Jonesborough, TN 37659
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK, Special Judge
OPINION
1 Appellant appeals as of right from the trial court’s dismissal of his petition for
post-conviction relief based on the running of the statute of limitations. Appellant
contends that the ruling in State v. Rickman, 876 S.W.2d 824 (Tenn. 1994),
clarifying the rule of when other uncharged instances of sexual conduct can be
admitted into evidence, creates a new, retroactive constitutional rule that voids his
conviction and sentence. He also asserts a denial of equal protection. We disagree
and affirm the judgment of the trial court.
In 1988 appellant was convicted by a jury of four counts of rape. He received
four sentences of seven years, to be served consecutively. On direct appeal
appellant specifically raised the issue of admission into evidence of sexual
encounters between the victim and the appellant outside the time frame alleged in
the indictments. The conviction and the sentence were affirmed by this court. State
v. James R. Blevins, No. 250 (Tenn. Crim. App., Knoxville, August 31, 1989). The
petition for rehearing was denied October 18, 1989. The Supreme Court denied
application for permission to appeal, concurring in results only, on January 2, 1990.
The Court denied the application to rehear on February 5, 1990.
In his first petition for post-conviction relief appellant alleged ineffective
assistance of counsel. After an evidentiary hearing the trial court dismissed the
petition, finding that defendant had effective trial representation. This court upheld
the dismissal. James R. Blevins v. State, No. 03C01-9106-CR-00171 (Tenn. Crim.
App., Knoxville, October 27, 1994). The application for permission to appeal was
denied February 6, 1995.
On March 3, 1993, petitioner filed a petition for habeas corpus. The trial
court found that it failed to allege grounds that would warrant the issuance of such
a writ and, if treated as a petition for post-conviction relief, was barred by the statute
of limitations. That dismissal was upheld by this court in James R. Blevins v. State,
No. 03-C-01-9308-CR-00271 (Tenn. Crim. App., Knoxville, January 5, 1994).
2 The petition for post-conviction relief now before the court was filed
January 5, 1995. It again raises the issue of admission of evidence of other sex
crimes not charged in the presentments. Under the law in effect at the time this
petition was filed, Tenn. Code Ann. §40-30-102(f)(1) required that an individual
apply for post-conviction relief within three years of the date of the final action of the
highest state appellate court to which an appeal was taken.1 Appellant’s petition in
this matter was filed well beyond that three-year limitations period.
However, appellant contends that the facts in his case place him within the
exception created in Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) and/or
Tenn. Code Ann. §40-30-105,2 granting relief when a case involves a constitutional
right not existing at the time of trial if the constitution requires retrospective
application. The appellant relies on State v. Rickman, 876 S.W.2d 824 (1994),3
asserting that Rickman creates a new constitutional rule of law which was not in
existence at the time of any earlier petitions. After consideration, we find the
defendant’s claims do not properly fall within either of these exceptions to the
statute of limitations.
First, the decision on which appellant in this case relies does not announce
a new constitutional rule, but only a new interpretation of Tenn. R. Evid. 404. State
v. Rickman, 876 S.W.2d at 829. It does not even exclude all evidence of other sex
crimes when an indictment is not time specific. It focuses only on evidentiary
1 The 1995 Post-Conviction Procedure Act, T.C.A. §40-30-201 et. seq. (Supp. 1996) applies to all post-conviction petitions filed after May 10, 1995. See 1995 Tenn. Pub. Act 207, Section 3. T.C.A. §40-30-202(a) provides that petitions for post-conviction relief must be filed within one year of the date of the final action of the highest state appellate court to which an appeal is taken, or if no appeal is taken, within one year of the date on which the judgment became final. 2 Now T.C.A. §40-30-202(b)(1). 3 In Rickman the Supreme Court overruled prior precedent, holding that there is no “sex crimes” exception to the general rule that other crimes evidence is not admissible in criminal prosecutions, but there is a narrow special rule which admits prior sex crimes into evidence if the indictment is not time specific and the other crimes allegedly occurred during the time frame charged in the indictments.
3 relevance of such other acts. Accordingly, this issue is without merit. See Burr v.
State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).
Second, even if a new constitutional rule had been announced in Rickman,
retroactive application would not be required. Generally, a new constitutional rule
of law is one that “breaks new ground or imposes a new obligation on the states or
the federal government . . . [or] if the result was not dictated by a precedent existing
at the time the defendant’s conviction became final”. Teague v. Lane, 489 U.S.
288, 301, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349 (1989); Meadows v. State,
849 S.W.2d 748, 751 (Tenn. 1993). A new rule of federal constitutional law is now
retroactively applied to all cases, state or federal, pending on direct review or not
yet final, regardless of whether the new rule constitutes a “clear break” with the
past. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).
However, a new federal constitutional rule will not be given retroactive application
to cases on collateral review unless (1) the rule places certain kinds of primary,
private individual conduct beyond the powers of the state to proscribe, or (2) the rule
requires the observance of procedures implicit in the concept of ordered liberty.
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
In State v. Meadows the Tennessee Supreme Court rejected the Teague
analysis, concluding that a new state constitutional rule will be given retroactive
effect only if it materially enhances the integrity and reliability of the fact-finding
process at trial. State v. Meadows, 849 S.W.2d 748, 754 (Tenn. 1993). As further
refined by our courts:
[A] factor which weighs heavily in favor of retroactive application of a new rule is the likelihood that it will enhance the integrity and reliability of the fact finding process of the trial. A factor which weighs heavily against retroactive application is the prospect that the integrity of the fact-finding process at trial will not be materially enhanced, coupled with the wholesale unsettling of final judgments of conviction.
4 Adkins v. State, 911 S.W.2d 334, 344 (Tenn. Crim. App. 1994), quoting State v.
Robbins, 519 S.W.2d 799, 801 (Tenn. 1975).
Thus, even if a new constitutional rule had been announced in Rickman, we
conclude that it should not be applied retroactively in this case because, applying
the Meadows standard, the rule announced therein does not materially enhance the
integrity and reliability of the fact finding process. Retroactive application of a new
constitutional rule in the post-conviction setting is necessary only when “the old rule
substantially impairs the truth-finding function at trial” and would tend to raise
“serious questions about the accuracy of [the] guilty verdicts . . . “. Meadows, 849
S.W.2d at 755. Such is not the case here. The defendant confessed to police that
he abused his stepdaughter twice a week for approximately five years. A tape
recording of an incriminating conversation between the defendant and the victim
was also introduced. The evidence of guilt was overwhelming. 4 Therefore,
retroactive application was not required.
Appellant finally contends that he has been denied equal protection of the
law because he has been treated differently from those persons whose cases were
in the direct appeal process at or after the time Rickman was decided. We find no
violation of appellant’s rights. He does not have an unqualified constitutional right
to retroactive application of subsequent case law once his case becomes final. Barr
v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995), citing Meadows v. State,
849 S.W.2d 748, 753-55 (Tenn. 1993).
We find no error of law mandating reversal. The judgment of the trial court
dismissing the petition is affirmed.
4 Although the attorneys stipulated during the hearing on this matter that the original trial transcript would be made a collective exhibit, it apparently was never tendered to the court, and was not sent as part of the record on appeal. Therefore, this court has considered the evidence presented at trial only insofar as it is included in previous appellate opinions.
5 __________________________________ CORNELIA A. CLARK SPECIAL JUDGE
CONCUR:
__________________________________ JOHN H. PEAY JUDGE
__________________________________ PAUL G. SUMMERS JUDGE
6 IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
JAMES ROBERT BLEVINS, ) C.C.A. No. 03C01-9611-CR-00396 ) WASHINGTON COUNTY Appellant, ) ) Hon. Arden L. Hill, Judge VS. ) ) (Post-Conviction) STATE OF TENNESSEE ) No. 21467 BELOW
JUDGMENT
Came the appellant, James Robert Blevins, by counsel and also came the attorney general on behalf of the state, and this case was heard on the record on appeal from the Criminal Court of Washington County; and upon consideration thereof, this court is of the opinion that there is no reversible error in the judgment of the trial court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the trial court is AFFIRMED, and the case is remanded to the Criminal Court of Washington County for execution of the judgment of that court and for collection of costs accrued below.
It appears that the appellant is indigent. Costs of this appeal will be paid by the State of Tennessee.
PER CURIAM
John H. Peay, Judge Paul G. Summers, Judge Cornelia A. Clark, Special Judge